Citation Nr: 21004184 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 15-30 533 DATE: January 26, 2021 ORDER Entitlement to service connection for a neck disability is denied. REMANDED Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. FINDING OF FACT The Veteran’s neck disability was not incurred in and is not otherwise related to his active service; the Veteran’s service-connected PTSD did not cause or aggravate his neck disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a neck disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1994 to December 1998. He had a second period of service from December 1998 to January 2004 that resulted in a bad conduct discharge. The Veteran testified before the undersigned at a September 2019 Board hearing held via videoconference. The claims file contains a transcript of the hearing. In February 2020, the Board remanded this matter to the RO for further development of records that might corroborate the Veteran’s claim. Specifically, the RO scheduled the Veteran for an VA examinations to determine the nature and etiology of 1) his IBS and whether it had been caused by or aggravated by his service-connected PTSD; and 2) his neck disability and whether it had been caused by or aggravated by his service-connected PTSD. The RO complied to the extent possible and service connection was denied in a supplemental statement of the case (SSOC) dated in September 2020. The Board finds the requested development was completed for the neck disability. For reasons indicated below, the IBS claim will be remanded for further development to ensure full compliance with prior instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant, when rendering a decision on appeal. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994).  The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board's decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104(d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81(Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149(2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra.  Entitlement to service connection for a neck disability is denied. Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67(Fed. Cir. 2004). Service connection may also be established for those “chronic diseases” listed in 38 C.F.R. § 3.309 (a) where the evidence shows a diagnosis manifest to a compensable degree within the presumptive period after service, or a continuity of symptomatology since service. See 38 C.F.R. §§ 3.303 (b), 3.307; Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Secondary service connection may be granted for a disability that is proximately due to a service-connected disease or injury, or that a service-connected disease or injury aggravated (increased in severity) the nonservice-connected disability for which service connection is sought. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.310. The Veteran claims entitlement to service connection for a neck disability on both a direct and secondary basis. Direct service connection During his hearing before the undersigned Veterans Law Judge, the Veteran testified that after repeated jumping in and out of trucks in all the gear, he started to feel like his neck was getting tense and stressed from all the "jarring, the landing every time" he got out of the trucks. See September 2019 Hearing Transcript. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. As noted in the Introduction, the Veteran had one period of active service that qualifies him for benefits. That first period of service was from December 1994 to December 1998. The second period of service, from December 1998 to January 2004, resulted in a bad conduct discharge which disqualifies the Veteran for benefits based on disabilities related to injuries, events, or diseases that occurred during that period of service. When the Board refers to the Veteran’s active service, therefore, the Board is referring only to the period from December 1994 to December 1998. The Board concludes that, while the Veteran has complaints of neck pain symptoms and past diagnoses including possible degenerative changes, the preponderance of the evidence is against finding that he has any neck disability than began during active service, or is otherwise related to an in-service injury, event, or disease. There were no complaints of neck pain during the Veteran’s period of service from 1994 to 1998. In August 1999, the Veteran was treated for neck pain, but, again, this was during the period of service for which he received a bad conduct discharge, so no benefits can be awarded based on that complaint. In September 2020, a VA examiner opined the Veteran’s neck disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted the earliest mention of neck pain after service was in June 2009. The Board acknowledges that the September 2020 opinion is partly incorrect in stating no complaints in service, but this inaccuracy makes no legal difference, since the Veteran cannot be awarded direct service connection based on his second period of service. The statement is correct to the extent that there were no complaints during the 1994-1998 period of service. While the Veteran is competent to report that he had neck pain during his active service, his reports are largely not credible due to internal inconsistency with other evidence in the record including service treatment records that indicate no symptoms of neck pain on various examinations during his active service and service treatment records after his period of active service indicating that the earliest in-service complaints of neck pain began in August 1999 (during his dishonorable period of service). Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). He did not provide a history in 1999 of neck-related symptoms dating back to his first period of service (“occasional”), and it is reasonable to expect that he would have done so, if he had in fact had symptoms dating back years. The fact that he did not weighs heavily against any allegation he makes now that his symptoms began during his period of honorable service. The greater weight of the evidence is against finding that the Veteran experienced any injury, event, or disease during his active service (again, his first period of service) that may be associated with any currently diagnosed neck disability. Under 38 C.F.R. § 3.12, pension, compensation, or dependency and indemnity compensation is not payable where a claim for such benefits is based on a period of service which was terminated by discharge or release under conditions other than dishonorable. The Veteran’s second period of service (December 1998 to January 2004) was concluded with a bad conduct discharge. See Veteran’s DD Form 214; see also July 2007 Administrative Decision (concluding Veteran’s January 2004 discharge was for “Bad Conduct” as a result of his own peristent and willful misconduct). Therefore, no injury, event, or disease during his second period of service (December 1998 to January 2004) can form the basis of a service-connection claim. The only evidence of neck pain symptoms associated with the Veteran’s military service are associated with an August 1999 treatment record where he complained of ongoing back pain for three months and occasional neck pain and a same-day x-ray was performed revealing mostly normal results. See August 3, 1999 Service Treatment Records. As such, it is clear from the evidence that his neck symptoms began during his dishonorable service, and entitlement to service connection on a direct basis for a neck disability is denied. Secondary Service Connection The Veteran also alleges that his neck disability was caused or aggravated by his service-connected PTSD due to the increased stress. Regarding secondary service connection, the Veteran underwent a VA medical exam in September 2020. After a physical exam and a review of the Veteran’s record, the examiner opined the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected condition. The examiner stated he could not formulate a nexus between PTSD and the Veteran’s claimed neck disability. See September 15, 2020 VA exam. In a September 28, 2020 addendum opinion, the same examiner opined there was no medical evidence to support a connection between PTSD and the Veteran’s neck disability, therefore it was her opinion that it was less likely than as not aggravated. Here, the September 28, 2020 VA examiner’s addendum opinion is persuasive in citing the absence of medical literature supporting the causal mechanism proposed by the Veteran and his representative is afforded high probative weight. Notably, there are no opinions in support of aggravation. Therefore, the only competent opinion of record is that of the September 2020 VA examiner which concludes that the condition was not aggravated by the Veteran's PTSD as the peer-reviewed medical literature does not support finding that there is a connection whereby PTSD would cause or aggravate a neck disability. The greater weight of the evidence is against finding that the Veteran’s neck disability was caused or aggravated by his service-connected PTSD. The Veteran’s claim of entitlement to service connection for a neck disability is denied on both a direct and secondary basis. REASONS FOR REMAND Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. The Veteran contends that his IBS was caused by his military service, to include as secondary to his service-connected PTSD. The Veteran underwent a September 2020 VA exam in connection with the claim, in which the examiner issued a negative nexus based on concluding an August 2001 treatment was the “earliest and only mention of GI symptoms” and the Veteran had no diagnosis or further treatment during active service. However, a review of the record reveals the Veteran was treated in November 1995 for gastroenteritis. See November 7, 1995 Service Treatment Records. Additionally, the Veteran testified he began having GI symptoms while deployed in the desert, really noticing an increase when he came back home. See September 2019 Hearing Transcript. The Veteran had service in Saudi Arabia and Kuwait at various times between 1995-96. As such, the opinion is factually inadequate and a remand for an updated opinion is warranted. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from February 2017 to the present. 2. The entire claims file should be reviewed by the examiner who examined the Veteran in September 2020 with respect to his IBS for the purpose of obtaining an addendum opinion (or another medical professional if that person is no longer available). A new examination is not required, unless it is deemed needed. After reviewing the record and performing any examination and/or testing of the Veteran deemed necessary, the examiner should address the following: (a.) Whether the Veteran's current IBS is at least as likely as not related to an in-service injury, event, or disease, to include the November 1995 treatment record for gastroenteritis. (b.) In doing so, the examiner should also consider and discuss the Veteran's claimed IBS condition and whether or not it is at least as likely as not related to his service in Southwest Asia or was instead caused by a supervening condition or event that occurred between that service and the onset of the disability. See, e.g., August 1999 treatment record during the Veteran’s second period of service (dishonorable for VA purposes) (page 111 of service treatment records received June 2012). MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mireya Martinez The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.